Considering that the parties deal in an identical sphere of business, it is incomprehensible that the Plaintiff was not aware of the Defendant’s hospital. The Plaintiff’s contention that they had become aware about the existence of the Defendant’s hospital only in the year 2022 prior to filing of the suit appears to be farfetched.

Apollo Hospitals Enterprises Ltd (the Plaintiff) filed the suit against the Defendant, Appolo Burn Hospital, alleging trademark infringement, passing off, etc,. Plaintiff seeks to restrain Defendant, Appolo Burn Hospital, from using the name Appolo or any other mark deceptively similar to Plaintiff’s registered trademark Apollo.

At the admission stage an interim injunction was granted in favour of the Plaintiff. The Defendant has sought to set aside the injunction order which the Court is considering.

The Plaintiff in the suit contends:

1. They were established in 1979 and have grown by leaps and bounds over the last four decades. Today, the name is synonymous with health care.
2. They run several hospitals, pharmacies, primary care, and diagnostic clinics, which ranges from sugar and dental clinics, birthing, daycare and dialysis centre, telemedicine, teleradiology, and telecardiology across various countries.
3. They employ over 70,000 persons, including Doctors, Nurses, and Paramedics, and have contributed significantly to the development of medical care in India. They have won several prestigious awards from various Non-Governmental and Government Departments recognizing their high-quality services.
4. Considering their growing popularity and being the first in several innovative surgeries, they have registered various trademarks with the profile Apollo under different Classes between 2007 and 2020.
5. In August 2022, they learned about the Defendant’s Appolo Burn Hospital and the manner in which they have dishonestly and deceptively adopted the mark purely with the intent of confusing the public. Dishonesty is evident from the fact that Defendant has removed one ‘L’ and added ‘P’ to come up with Appolo Burn Hospital.

The Defendant seeks setting aside of the injunction on the following:

• Appolo Burn Hospital was started in 1992 in a rented building in Patna, and in 2001, they shifted to their premises.
• Appolo Burn Hospital was started by Dr. Kamod Narayan Tiwary, who was a Master of Chirurgiae (MCh) in the field of plastic and reconstructive surgery. He had set up a burn unit with modest amenities in 1992 in the rental premises and adopted the name ‘Appolo’ as an acronym of his father-in-law’s name and teachings.
• The hospital has been functioning for over three decades and has treated more than 11000 patients. It is well known among the trade and public for treating burn victims. They have also been conferred with awards and accolades by various nationwide prestigious organizations.
• Plaintiff had suppressed that they were fully aware of Appolo Burn Hospital as the former has been running two hospitals in the same locality as Defendant for over 12 years.
• Until 2011, Plaintiff had not established any clinic or hospital in the entire state of Bihar, and it was only in 2011 that they had entered Bihar under their sub-brand ‘Apollo Clinic.’ Having known about the functioning of the hospital for over 12 years and having kept quiet for all these years, the Plaintiff cannot be permitted to seek an injunction from using the mark Appolo Burn Hospital, which they have been using continuously since 1992.
• There is delay and acquiescence.

Courts findings

1. The grievance of Plaintiff is that the use of the mark Appolo Burn Hospital by the Defendant amounts to trademark infringement and passing off. Admittedly, Plaintiff was incorporated as a company in 1979. However, they have, for the first time, applied for registration of its trade name Apollo Hospitals in the year 2007. The fact that a company that had been incorporated in the year 1979 chose to register its trademark in the year 2007 evidence that it is only around that time that the trademark had gained popularity.
2. The Defendant’s case is that he had set up Appolo Burn Hospital in April 1992. Thus, Appolo Burn hospital had been functional much prior to the Plaintiff’s trademark ‘Apollo’ being registered and having earned a big name for itself both nationally and internationally.
3. Prima facie, the Defendant’s adoption of the word ‘Appolo’ appears to be bonafide. Defendant has carved a niche for himself in treating burn victims and operates only within the city of Patna, whereas Plaintiff has varied areas of specialization. Moreover, when Defendant set up its hospital in 1992, Plaintiff did not have its trademark registered. Thus, the question of infringement does not arise. As Plaintiff’s name had not attained the stature or presence it now enjoys in 1992 when Defendant set up its hospital, the question of passing off does not arise.
4. Concerning acquiescence and delay, the documents on record evidence that Plaintiff had set up three hospitals in Patna between 2009 and 2011, which is close to Defendant’s hospital.
5. Considering that the parties deal in an identical business sphere, it is incomprehensible that Plaintiff was unaware of Defendant’s hospital. The Plaintiff’s contention that they had become aware of the existence of the Defendant’s hospital only in the year 2022 before filing of the suit appears to be farfetched. No convincing reason is forthcoming for approaching the Court belatedly. Thus, in the instant case, there is both acquiescence and delay.

In light of the above, the Court allowed the application to set aside the injunction filed by the Defendant and allowed Appolo Burn Hospital to use the name.